Gaza Ceasefire: An Early Assessment By Richard Falk

The Gaza Ceasefire, unlike a similar ceasefire achieved after Operation Cast Lead four years ago, is an event that has a likely significance far beyond ending the violence after eight days of murderous attacks. It is just possible that it will be looked back upon as a turning point in the long struggle between Israel and Palestine. Many have talked about ‘the fog of war,’ but it pales besides the ‘the fog of truce making,’ and in our media-infected air, the outcomes along with conjectures about the future are already being spun in all possible directions

Supporters of every position give their own spin, and then proclaim ‘victory.’ But as with the violent phases of the conflict, it is clarifying to distinguish the more persuasive contentions and interpretations from those that are less persuasive. What follows is one such attempt at such clarification.

It remains too soon to tell whether the ceasefire will hold for very long, and if it does, whether its central provisions will be implemented in good faith. At this early moment, the prospects are not promising. Israel has already used excessive violence to disperse Palestinian civilians who gathered on the Gaza side of the border, with a few straying across into Israel, to celebrate what they thought was their new freedom now to venture close to the border.

This so-called ‘no-go-area’ was decreed by Israel after its 2005 ‘disengagement’ has been a killing field where 213, including 17 children and 154 uninvolved, had lost their lives according to Israeli human rights organizations. Israeli security forces, after firing warning shots, killed one Palestinian civilian and wounded another 20 others with live ammunition. The Israeli explanation was that it had given warnings, and since there had been no agreement on new ground rules implementing the ceasefire, the old regime of control was still in place. It is notable that Hamas protested, but at this point has made no moves to cancel the ceasefire or to retaliate violently, but the situation remains tense, fragile, and subject to change.

Putting aside the precariousness of the current situation and the accompanying uncertainties, it remains useful to look at the process by which the ceasefire was brought about, how this sheds light on the changing dynamics of the conflict itself, as well as discloses some underlying shifts in the regional and global balances of forces.

First of all, the role and outlook of the Arab governments was far more pro-active than in past interludes of intensified Israel/Palestine violence. During attacks several leading foreign ministers from the region visited Gaza and were received by the Hamas governing authorities, thus undermining the Israeli policy of isolating Hamas and excluding it from participation in diplomacy affecting the Palestinian people. Egypt played the critical role in brokering the agreement, and despite the Muslim Brotherhood affiliation of its leaders. Mohammed Morsi, the Egyptian President, emerged as the key diplomatic figure in the process and widely praised by the West for his ‘pragmatism.’ This can be understood as recognition of Morsi’s capability as a statesman to address the concerns of both sides without intruding his own pro-Palestinian outlook. Indeed, the auspices of this brokered agreement inverted what Americans have brought to the table in past negotiations, a pretension of balance, a reality of partisanship.

Secondly, the text of the agreement implicitly acknowledged Hamas as the governing authority of Gaza, and thereby gives it, at least temporarily, a greatly enhanced status among Palestinians, regionally, and internationally. Its claim to be a (not the) legitimate representative of the Palestinian people has now become plausible, making Hamas a political actor that has for the moment been brought in from the terrorist cold. While Hamas is almost certain to remain formally ‘a terrorist organization’ in the eyes of Israel, the United States, and Europe, throughout this just concluded feverish effort to establish a ceasefire, Hamas was treated as if ‘a political actor’ with sovereign authority to speak on behalf of the people living in Gaza. Such a move represents a potential sea change, depending on whether there is an effort to build on the momentum achieved or a return to the futile and embittering Israeli/U.S. policy of excluding Hamas from diplomatic channels by insisting that no contact with a terrorist organization is permissible or politically acceptable.

Correspondingly, the Palestinian Authority, and its leader, Mahmoud Abbas, have been for the moment awkwardly sidelined, overshadowed, and made to appear irrelevant in the midst of this latest terrible ordeal affecting the Palestinian people. It is puzzling why such an impression was fostered by the approach taken by all the diplomatic players.

Thirdly, Israel accepted as integral conditions of the ceasefire two sets of obligations toward the people of Gaza that it would never have agreed to before it launched its Pillar of Defense Operation: (1) agreeing not to engage in “incursions and targeting of individuals” and (2) agreeing to meet so as to arrange for the “opening the crossings and facilitating the movements of people and the transfer of goods, and refraining from restricting residents free movement, and targeting residents in border areas.”

If implemented in good faith by Israel, this means the end of targeted assassinations and it requires the lifting of the blockade that has tormented Gaza for more than five years. These are major setbacks for the Israeli policy, although Hamas is obligated to stop sending rockets from its territory. The political acceptance by Tel Aviv of a prohibition on targeted assassinations, if respected, renounces a favorite tactic of Israeli governments for many years, which although generally regarded as illegal was still frequently relied upon by Israel with impunity. Indeed, the most dramatic precipitating event in the recent controversial unfolding crisis timeline was the killing of Ahmed al-Jabari on 14 November, a military/political leader of Hamas, who at the very time was negotiating a truce relating to cross-border violence. Unraveling the competing claims of acting defensively should at least acknowledge this complexity that makes polemical the contention that only one side is responsible. The Obama administration, with its usual deference to Tel Aviv, misleading told the story of the sustained violence as if only Israel was entitled to claim a defensive prerogative.

Fourthly, the role of the United States, while still significant, was considerably downsized by these other factors, especially by the need to allow Egypt to play the main role as arbiter. Such a need was partly, no doubt, a consequence of Washington’s dysfunctional insistence of continuing to avoid any direct contact with Hamas officials. This Egyptian prominence suggests a trend toward the regionalization of Middle East diplomacy that diminishes the importance and seriously erodes the legitimacy of extra-regional interference. This is bad news for the Israelis and for the United States. Turkey, a state with bad relations with Israel, also played a significant role in defusing the escalating crisis.

There exists a revealing gap between the U.S. insistence all along that Israel’s use of force was fully justified because every country has the right to defend itself and the ceasefire text that placed restrictions on future violence as being applicable to both sides. After the ceasefire, the United States needs to make a defining choice: either continue its role as Israel’s unconditional enabler or itself adopt a more ‘pragmatic’ approach to the conflict in the manner of Morsi. If the United States remains primarily an enabler, its diplomatic role is likely to diminish rapidly, but if it decides to adopt a balanced approach, even if quietly, it might still be able to take the lead in establishing a real peace process that is sensitive to the rights of both sides under international law. To make such a shift credible, President Obama would have to make a major speech to the American people at some point explaining why it is necessary to choose between partisanship and diplomacy in reshaping its future relationship to the conflict. However sensible such a shift would be both for American foreign policy and the stability of the Middle East, it is highly unlikely to happen. There is nothing in Obama’s resume that suggests a willingness to go to the people to circumvent the dysfunctional outlook of special interest groups that have dominated the way the U.S. Congress and the media present the conflict.

Fifthly, the United Nations was made to appear almost irrelevant, despite the presence of the Secretary General in the region during the diplomatic endgame. Ban Ki Moon did not help matters by seeming to echo the sentiments coming from Washington, calling attention almost exclusively to Israeli defensive rights. The UN could provide more neutral auspices for future negotiations if it were to disentangle itself from Western geopolitics. To do this would probably require withdrawing from participation in the Quartet, and pledging a commitment to a sustaining and just peace for both peoples. As with United States, it is highly unlikely that the UN will make such a move, at least not without prior authorization from Washington. As with Obama, there is nothing in the performance to date of Ban Ki Moon as Secretary General that suggests either the willingness or the capacity to act independently when the geopolitical stakes are high.

Sixthly, the immediate aftermath of the ceasefire was a call from the Gaza streets for Palestinian unity, symbolized by the presence of Palestinian Authority, Hamas, Islamic Jihad, and Popular Front for the Liberation of Palestine flags all flying in harmonious co-existence. As the New York Times commented, “a rainbow not visible here in years.” If Palestinian unity holds, and becomes a practical reality by being implemented at governmental levels, it could alter the political landscape in a fundamental manner. To take hold it would require open and free elections throughout Occupied Palestine. If this narrative were to unfold, it might make the ceasefire to be perceived as much more than a temporary tense truce, but as a new beginning in the long march toward Palestinian justice.

All in all, the outcome of Operation Pillar of Defense was a resounding defeat for Israel in at least three respects: despite the incessant pounding of Gaza for eight days and the threat of a ground invasion, Hamas did not give in to Israeli demands for a unilateral ceasefire; the military capabilities of Gaza rockets exhibited a far greater capacity than in the past to inflict damage throughout the whole of Israel including Tel Aviv and Jerusalem, which suggests that in any future recurrence of major violence the military capabilities at the disposal of Gaza will become even greater; and the Israeli politics of promoting the Palestinian Authority as the only legitimate representative of the Palestinian people while refusing to deal with Hamas was dealt a heavy, possibly fatal, blow.

There is one chilling slant being given by Israeli officials to this attack on Gaza. It is brazenly being described as ‘a war game’ designed to rehearse for an impending attack on Iran. In the words of Israel’s ambassador to the United States, Michael Oren, “Israel was not confronting Gaza, but Iran.” Considering that at least 160 Gazans were killed, 1000 wounded, and many more traumatized, this is, or should be, a shocking admission of a declared intent to commit crimes against humanity. It should at least prompt the UN Human Rights Council to appoint a fact-finding mission to assess the allegations of criminal conduct during the military attack. In effect, the situation demands a Goldstone 2 report, but this time with the political will to follow through, assuming that incriminating findings are reported.If the HRC does not initiate such a process, as seems a near certainty at this point, the responsibility and the opportunity is a challenge to civil society organizations committed to peace and justice. Given the tactics and disproportionate levels of violence, it would be a fresh abuse of those who died and were injured, to fail to assess this behavior from the perspective of international criminal law.

These developments will themselves be affected by the pervasive uncertainties that make it likely that the ceasefire will be a short truce rather than a dramatic turn from violence to diplomacy. Will the parties respect the ceasefire? Israel has often in the past made international commitments that are later completely abandoned, as has been the case with dismantling the numerous ‘outposts’ (that is, ‘settlements’ unlawful even under Israeli law) or in relation to the commitment to settle the ‘final status’ issues associated with the Oslo Framework within five years. It is not encouraging that Israeli officials are already cynically whispering to the media that they agreed to nothing “beyond the immediate cessation of hostilities.” The undertakings of the text are thus being minimized as ‘talking points’ rather than agreed commitments that lack only specific mechanisms for their implementation. If Israel refuses to give effect to the agreed stoppage of targeted assassinations and does not move to end the blockade in good faith, it will not be surprising to see the rockets flying again.

The Palestinian Authority is poised to regain some of its lost ground by seeking recognition by the UN General Assembly of its status as ‘a non-member state’ on November 29, 2013, a move being fiercely resisted by Tel Aviv and Washington. It is probably too much to expect a softening of this diplomacy. Any claim of Palestinian statehood, even if only of symbolic significance, seems to threaten deeply Israel’s hypocritical posture of agreeing to the creation of a Palestinian state in the abstract while doing everything in its power to oppose any Palestinian efforts to claim statehood.

Such speculations must be conditioned by the realization that as the clock ticks the international consensus solution to the conflict, an independent sovereign Palestine, is fast slipping out of the realm of the feasible, if it has not already done so. The situation of prolonged occupation has altered the demography of Occupied Palestinian and raised the expectations of most Israelis. With as many 600,000 unlawful settlers in the West Bank and Jerusalem no foreseeable Israeli government would survive if it agreed to any conflict-resolving arrangement that required even a small percentage of those settlers to leave. In contrast, on the Palestinian side no arrangement would be sustainable without the substantial reversal of the settlement phenomenon. So long as this 1000 pound gorilla strides freely along the corridors of diplomacy, attaining a genuine peace based on the international consensus of two states for two peoples seems an exercise in wishful thinking.

At the same time, history has shown us over and over again that ‘the impossible’ happens, impossible in the sense that it is an outcome that informed observers rejected as ‘possible’ before it surprised them by happening. It happened when European colonialism was defeated, and again when the Soviet internal and external empire suddenly disintegrated, and then when the apartheid regime was voluntarily dissolved. Sadly, the Palestinian destiny continues to be entrapped in such a foreclosed imaginary, and yet as we have learned from history the struggles of oppressed peoples can on achieve the unforeseeable. It is just barely possible that this latest display of Palestinian sumud (steadfastness) in the face of Pillar of Defense, together with the post-2011 increased responsiveness of the governments of Israel’s neighbors to the wishes of its their own citizenry, will give rise to a sequence of events that alters the equations of regional and global power enough finally to give peace a chance.

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume, International Law and the Third World: Reshaping Justice (Routledge, 2008). He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.